Judge Blocks NFL Concussion Settlement

This is TELL ME MORE from NPR News. I'm Michel Martin. Coming up, some corners of the Internet are melting down because of a reported shortage of Velveeta. And don't try to act like you don't know what that is. We'll talk about the history of the ooey, gooey stuff and why, in a buffalo mozzarella world, we still like it. But first, to football. This is golden time for pro-football lovers. Two teams will book their tickets to the Super Bowl this weekend after a long season of hard hits.

And if you follow the sport, then you know that there has been off-the-field drama, too, about what the sport owes former players who may have been injured during their playing days. There was, as you may remember, an agreement signed last year between the league and some 4,800 former players. But yesterday, the $765 million settlement was rejected by a federal judge. NPR's Mike Pesca is with us now from our studios in New York to bring us up to date. Welcome back, Mike. Thanks so much for joining us once again.

MIKE PESCA, BYLINE: Absolutely, thanks for having me.

MARTIN: So could you just give us the background for people who have not been following this story? So how did this lawsuit start to begin with, and what was the settlement? What was the agreement?

PESCA: This lawsuit - well, let's go right to the point where it was settled, which was right before this season began and what thousands of players, former players and their families were alleging - and this is backed up by better and better science - is that the brain injuries and the concussions of football cause lifelong problems, dementia, chronic traumatic encephalopathy, all sorts of problems. And furthermore, there is growing evidence as demonstrated in the book and PBS series "League of Denial" that the NFL knew about some of this and either totally improperly investigated it or even sat on some of these findings.

So this is, you know, a classic reason to have a lawsuit against an employer. And the NFL didn't want these stories coming out over and over again, knows that it's this, you know, extremely profitable and extremely well-watched franchise. In fact, really, I mean, this fall, the last 25 most-watched TV shows this fall have been NFL games. It is the most culturally-ascendant property. And they said, let's put this lawsuit to rest. And they settled. And all the people in the lawsuit agreed to a figure of - well, you'll hear a few figures - but essentially, $675 million will be put aside and paid to people who suffered maladies - head-related maladies from playing football. Then there was another 10 million for research, another 75 million to screen the former players to see who had head maladies. The players, or at least the ones doing suing, agreed to it. And then, the next step in the process was the judge would have to sign off on the agreement between those suing and the ones who were sued, which is the NFL, and the judge did not agree to their agreement.

MARTIN: So what was her reasoning?

PESCA: There was really just one thing. She didn't think that there was enough money, or she wasn't sure that there was enough money set aside to cover everyone. Now when people sue, they only - in a case like this, a class-action not only represents the exact signatories to it, but the specifics of this class-action was they would represent every former NFL player. So even though there were 4,000 or 5,000 former players or their families represented, there was something like 15,000 players out of the suits. Maybe some would never want to sue. Maybe some never heard about. Maybe some maybe would one day like to sue.

And she said, all of those players, if you do the math, there might not be enough money of the 675 million to cover all the players. I mean, the suit was laying out that we're going to pay, you know, $5 million to a 45-year-old who played five years in the NFL and who has ALS, Lou Gehrig's disease. And then, depending on how long you played and how old you are, there different dollar amounts. But many players would be getting millions of dollars. So she didn't exactly say there's not enough money. But she said, you didn't prove there was enough money. You made a reference to - you consulted top minds, forensic accountants saying that. But I don't see the math on this. So she said do it again. Either document it better or come back with a higher number.

MARTIN: So what has to happen now? I mean, is the working assumption is that they'll come back with another number? What are people saying?

PESCA: Well, yeah. We can assume that. It's likely that especially the lawyers who put this together, in consultation with their clients, will want to at least document that they have - that their number, their 675, is going to stretch as far as they need to, to service everyone who can possibly apply for the suit. Perhaps, given the impetus of what the judge ruled, the NFL will agree to actually put some more money in the kitty, which would be something that - you know, another win for the plaintiff lawyers.

Or it could be the case that they're going to rip this whole thing up, and they'll start again. And there are a whole bunch of players who have publicly objective to this suit. There is ways that they could formally opt out of the suit. And if the judge decides that there are so many players or potential people who can be paid that object to it, you know, she could - if they try to recertified again for a few million more dollars - she could say, no, this isn't going to work. So maybe they'll have to, you know, come up with a much higher dollar figure.

MARTIN: What about the NFL? Has the NFL been heard from on this or the owners?

PESCA: The - yes. So, so far in this suit, almost all the press has been coming from the plaintiffs. The plaintiffs were the ones who held a press conference and said, this is why we decided on this amount of money. And by the way, I should say that the judge appointed a negotiator as a go-between, a former federal judge, and he signed off on it, too. So that's what makes Anita Brody's - the federal judge in this case - a little unusual that she said not good enough, not good enough from both sides and the negotiator I appointed. But the NFL did release a short statement essentially saying that the facts are good. And once we, you know, show to the judge that our experts are actuaries, have accounted for all of this, she should be satisfied.

MARTIN: Well, is there - again, this may be out of your wheelhouse. But is there any possibility that the judge herself could be overruled? Is there any mechanism by which people say, we reject your rejection of this and we think you've exceeded your authority?

PESCA: No, because it's too - I do have a big wheelhouse, and I firmly believe and I have not heard any suggestion that that's the case. I think that the two sides have to go through this process because they were certified as a class-action suit, so they're going before the judge. A judge has a responsibility - and she cited this in her notes - to take care of, you know, the people not even in the suit. So the NFL would not want to settle with a bunch of plaintiffs unless they were settling with everyone. They want to have this off the table. So there's no way - I mean, they could cut a side deal with individuals. But they can't cut a side deal with people who are not, you know, necessarily in the suit right now. They can't - the NFL can't make a deal that covers them and all former players in perpetuity unless they go through a judge like Anita Brody.

MARTIN: So before we let you go - and obviously, we're talking about life-or-death matters...

PESCA: Yeah.

MARTIN: ...At least as the research indicates. These can be sort of life-or-death matters.

PESCA: Absolutely.

MARTIN: But I do want to ask, if you don't mind, about the games coming up. Is that OK?

PESCA: Well, that's...

MARTIN: And since, you know, you're here....

PESCA: I think it's fine.

MARTIN: Yeah, we're down to the final four teams.

PESCA: This why we're so interested in the NFL. It's not because of the lawsuits. It's because of how compelling the games are. Exactly.

MARTIN: And so looking ahead, what do you see?

PESCA: I think...

MARTIN: Out of the final four. Go ahead.

PESCA: I think...

MARTIN: Tell me out of the final four.

PESCA: ...Seattle has an extremely potent home-field advantage, more than I think it really has been demonstrated statistically. And they also seem to have a really good team. So I would give them the advantage against San Francisco. But what a good game that will be, the two quarterbacks Russell Wilson and Colin Kaepernick - very similar quarterbacks. They could run. They could throw - really good defenses. Probably, the Seattle defense a little better than the San Francisco defense. Then you have this game in New England which is Brady versus Manning. There are actually 50 other players on these teams, but it's really...

MARTIN: Really?

PESCA: Yes, yes.

MARTIN: Oh, sorry.

PESCA: You wouldn't know it.

MARTIN: I forgot. Yeah.

PESCA: But it has been boiled down in the narrative, and they really are the most important guys. And, I mean, this is why the sport is just so popular. In the one game, you have strategy - in the NFC game, you know, you have strategy. You have some amazing athletic feats. But here, it's the gunslingers. It's the men on the white horses who, you know, we can all - it's the generals, and they're the symbol of the NFL. And we think we know so much about the two personalities.

And everyone's going in with an opinion - if Tom Brady can get another Super Bowl ring, if Peyton Manning is actually as tough and can live up to his post-season numbers. It's, you know, a fascinating soap opera for men and increasingly women.

MARTIN: And increasingly women. Do you mind if I ask you...

PESCA: Yeah.

MARTIN: ...Who do you like on that game - Patriots versus the Colts? Where do you...

PESCA: Oh, the Patriots versus the...

MARTIN: Oh, I forgot. Broncos, I mean...

PESCA: Yeah.

MARTIN: I can't believe I did it. That's part of the legend. I mean, here is a guy who was, like, the name and the face...

PESCA: Yeah. Yes.

MARTIN: ...Of the franchise. And now he's with the Broncos.

PESCA: Well, you know.

MARTIN: I can't believe I did that.

PESCA: Two equine-related terms for you.

MARTIN: Exactly.

PESCA: You're excused.

MARTIN: All right. So who do you like there?

PESCA: And the Colts, they play the Patriots. Yeah, I like the Broncos. And I think that the difference is that even though the Patriots looked really good in their game last week and ran the ball well, their offense without Rob Gronkowski is a different offense...

MARTIN: OK.

PESCA: ...Than it's always been. It looks like a good running offense.

MARTIN: OK.

PESCA: Denver knows that. We'll have to see. We'll have to see if the Patriots run the ball, if the Patriots throw the ball, how well they do both.

MARTIN: OK.

PESCA: Denver seems to be - Denver is the slight favorite in Vegas, and I'm going to go with them, too.